Hidden Renvoi: The Search for Corporate Liability in Alien Tort Statute Litigation

In its two most recent decisions regarding the Alien Tort Statute (ATS)—Jesner v. Arab Bank and Kiobel v. Royal Dutch Petroleum— the US Supreme Court failed to answer the specific question upon which it granted certiorari: whether the ATS permits suit against corporate defendants. These two cases reveal only that the ATS does not permit suits against foreign corporate defendants or suits for claims arising from conduct that takes place outside of the US. To frustrate the ATS saga further, the fractured Court in Jesner expressly declined to resolve the question whether international or domestic law should govern corporate liability. And only the plurality even entertained the issue that was central to the lower court’s reasoning: whether the ATS required a customary international law norm of corporate liability or, instead, allowed plaintiffs to bring tort claims ipso facto under federal common law. The inarticulation leaves a gap in international law that the Supreme Court would do well to fill. The question has begun to percolate among the lower federal courts, and it has emerged in a case before the Canadian Supreme Court as well. (Nevsun Res. v. Araya, 2018 CarswellBC 1552 (Can.) (WL) (granting petition for review)).